This is a partial transcript from "Hannity & Colmes," June 27, 2006, that has been edited for clarity.
MIKE GALLAGHER, GUEST CO-HOST: Thanks for joining us tonight on "Hannity & Colmes." I'm Mike Gallagher, filling in for Sean tonight.
Can The New York Times be prosecuted for their story about the government's secret terrorist finance tracking program?
The 1917 Espionage Act bars anyone from obtaining information about national defense with intent or reason to believe that it is to be used to the injury of the United States. But is putting a newspaper on trial the best way to stop the leaking of national security secrets?
Joining us tonight is former federal prosecutor, now a senior fellow at the Foundation for the Defense of Democracies, Andrew McCarthy, who has written about this issue in The National Review.
I have appreciated reading your articles and your opinions this week on National Review Online about this...
ANDREW MCCARTHY, FMR. FEDERAL PROSECUTOR: Thank you.
GALLAGHER: ... about the arrogance, the perhaps recklessness of the Times on this. But you write that, "If going after the 'Times' on legal grounds is followed through, there aren't enough votes on the U.S. Supreme Court to really come to a conclusion that the 'Times' was guilty of anything."
Isn't that kind of a long way around this problem? If the Espionage was broken, Espionage Act, shouldn't there at least be an investigation?
MCCARTHY: Well, I actually think, if what your main interest is in stopping the leaks, it actually opens the field to what is the shortest way to get to the heart of this problem, which is to conduct a thorough investigation of the government officials who were doing the leaks, immunize the reporters, make them go in the grand jury, and give up their sources.
GALLAGHER: Go after the leaker rather than those who are publishing the leaks?
MCCARTHY: Right.
GALLAGHER: But reporters have always had sources. They've always had — and a lot of reporters are going to try to martyr themselves. They'll go to jail to protect their sources. Why not go after the newspaper if they have broken the law?
MCCARTHY: Well, it may take a long time, number one, to prosecute the newspapers. The Espionage Act may not be a very easy or appropriate route to go after the newspapers, because there's some legal issues about whether the absence of the word "publish" in the statute is an indication by Congress that the newspapers, and publications in general, were not meant to be reached by that particular statute.
There's another statute that actually applies to the NSA scandal, the signals intelligence, which actually specifically talks about publication. And people have used the fact that "publish" isn't in the Espionage Act to argue that that's not supposed to reach the press.
GALLAGHER: Is there a line, though, that could be crossed, in your view, if there was evidence? Hypothetically, we find out someday that a terrorist was tipped off by The New York Times, did regroup, did cover his tracks, did slaughter innocent people, then would there be cries for a full-scale investigation or prosecution?
MCCARTHY: Well, I think there not only would be cries, I think it's theoretically possible and possibly even the right answer that the newspapers should be able to be reached by the Espionage Act. But I think if you realistically say you don't have a very good shot at winning that ultimately with the courts, we have to do something about this. There's no...
COLMES: Why do we have to do anything about this? First of all, don't you want to live in a country where there's a free press? Do you want the government to be able to tell the Times or any other press organ what it should or should not print?
MCCARTHY: You don't realistically think that, if you go after government officials who leak classified information, that that changes...
(CROSSTALK)
COLMES: First of all, is there any evidence The New York Times leaked classified information? They were not the leaker, for one thing. They may have printed something, and we don't even know if what they printed was classified.
MCCARTHY: They absolutely are the leaker. If I leak...
COLMES: Who leaked to the Times?
MCCARTHY: Well, but if I leak to you and you leak out, you and I are both...
COLMES: But why not go after the person who told the Times, if you want to go after anybody? Why go after the press?
MCCARTHY: I just said that I thought the best way to go after this was actually to go after the people who leaked to the Times.
COLMES: Do you want to also go after reporters who don't give up their sources? At least that's what you wrote in The National Review. You...
MCCARTHY: Yes, I do. I think they should — like anyone else who is the witness to a crime — in this country it is a crime for a public official...
(CROSSTALK)
COLMES: We don't know that a crime was committed. You want to put the...
(CROSSTALK)
MCCARTHY: You never know that a crime was committed until you have an investigation. That's why they...
COLMES: You want to put the chill of censorship down the spine of reporters who will then hold back and not do what they should do, which is ride herd on our government. Isn't that what a free press is supposed to do?
MCCARTHY: No. I do want to put the chill on the reporters that, if what it goes to is leaking classified information, leaking national defense information during wartime.
COLMES: What was leaked in the New York Times story that you can assert actually caused trouble for the United States? What line? What sentence? What part of what the Times printed can you say with assertion is going to hurt the United States?
MCCARTHY: It's a lengthy article, but, to begin with, telling them that we have a communications hub so that, when money gets moved...
COLMES: We knew that. That was already leaked.
(CROSSTALK)
COLMES: The president himself talked about it.
MCCARTHY: That's ridiculous.
(CROSSTALK)
COLMES: It was already known.
MCCARTHY: It wasn't already known. First of all, it wasn't known that we had access to the SWIFT database.
COLMES: It's already been published.
MCCARTHY: To the extent that people who have been moving around money think that because it hasn't been seized that they've been in the clear and they're safe, now they know that it may not be true.
GALLAGHER: Absolutely, specifics.
MCCARTHY: And that's a problem...
GALLAGHER: That's the specifics, is what The New York Times engaged in.
COLMES: This is not new information.
GALLAGHER: Absolutely new information.
MCCARTHY: It must have been new to Hambali, because he got arrested.
GALLAGHER: All right. Andrew McCarthy, keep up the good work. Thanks for joining us tonight.
MCCARTHY: Thank you.
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